Kenya: Elections Ready or Not, 2

Editor's Note

Violence in the aftermath of the 2007 Kenyan elections
which claimed 1,300 lives shows just how vital it is
Kenyan police are properly prepared ahead of polls this
March, Amnesty International said in a new report, Police
Reform in Kenya: A Drop in the Ocean. The report details
how delays in implementing new laws on policing mean that
many of the same police structures in place during 2007-8
post-election violence will be responsible for security
for the 4 March vote.

In addition to this report from Amnesty International,
there is no shortage of well-informed commentary, by
Kenyans and others, on the risks of violence in the
elections. I have picked several to included in today's
two AfricaFocus Bulletins, for their clarity and
provision of background accessible for a general audience
(those who are neither Kenyans nor Kenya specialists).

This AfricaFocus Bulletin contains a statement by Makau
Mutua, chair of the non-governmental Kenya Human Rights
Commission; the press release on a new report by Amnesty
International on Police Reform in Kenya; and the summary
of a pre-election report from the International Crisis
Group.

Another AfricaFocus Bulletin, sent out by e-mail today
and available on the web at http://www.africafocus.org/docs13/ken1302a.php, contains
a "Contingency Planning Memorandum" on electoral violence
in Kenya, authored by Joel Barkan for the Council on
Foreign Relations.

And from May of last year, but still very relevant, is
Karen Rothmyer's article on the complex implications of
the International Criminal Court process on Kenya, which
could still have its own impact on the likelihood for
violence. See http://tinyurl.com/a6f4bl8

Perhaps we should postpone the March General Election

Makau Mutua is Dean and SUNY Distinguished Professor at
SUNY Buffalo Law School and Chair of the KHRC. Twitter
@makaumutua

* Not ready: Parties were exposed as highly disorganised
and totally unprepared

* I prophesy nothing, let alone doom; I am rather giving
a warning about what is likely to happen

Kenya could as well postpone the March elections. Last
week's party primaries made one thing crystal clear.
Kenya is ill-prepared to conduct free and fair elections
in March.

No one, and no single institution, is ready for the
elections. Only a goddamned fool would go down a cliff
with a car that's got no brakes. There is a real danger
that peace would be seriously disturbed during, and
after, the elections.

Take this to the bank â€“ndash; Kenya is too fragile a state to
withstand violent clashes in every corner of the country.
If we love Kenya â€“ndash; and we do â€“ndash; let's debate about the
need to extend the date of the elections until we are
reasonably ready.

There are five reasons why I think the elections must be
put off. First, these are the most complex elections in
Kenya's history. The new Constitution, though a blessing,
has created seemingly byzantine electoral norms and
structures that are flummoxing not only to the ordinary
Wanjiku, but to the elites.

It's a complex system that would be challenging even for
a developed democracy with a largely literate electorate.

None of these two conditions obtain in Kenya. Ours is a
poor electorate that's largely gullible. Our demagogic
politicians know just how to bamboozle the electorate
with money and tribal myopia. Mix this witch's brew with
political skulduggery, deliberate sabotage, and rentseeking
and you get a pregnant powder keg â€“ndash; a political
volcano.

Second, a General Election is a process, not a single
event. But one of the most important events in that
process is political party primaries. Free and fair
elections are eviscerated where party primaries are
shambolic.

It's like making tea without water, or milk. It's a
practical impossibility â€“ndash; it simply can't be done. Water
or milk is a condition sine qua non to tea.

Primitive test

There isn't a single sane person who thinks the party
primaries last week even pass the most primitive test.
Missing, or stuffed ballots, rogue returning officers,
dictatorship by party bosses, blatant nepotism and
tribalism, vote-buying, daylight violence, voodoo math in
vote-counting, and false results made nonsense of the
exercise. It was a total sham.

The primary results are unsalvageable because they affect
the two major coalitions â€“ndash; Cord and Jubilee. You can't
have a credible General Election where the two major
alliances have fake or illegitimate primaries.

But they are too small to restore legitimacy denied to
the process by the main groupings. Cord and Jubilee
botched the primaries partly because they carried them
out too late.

The tactic to prevent losers from defecting to rivals was
the last straw. Parties were exposed as highly
disorganised and totally unprepared. That's why the
primary results are fruits of a poisoned tree â€“ndash; they are
deadly and completely inedible.

Third, the two institutions charged with overseeing
elections "completely went south". Both the IEBC and the
Registrar of Political Parties were a disgrace. They
lazily and incompetently stood by rather than superintend
themselves over the primary elections.

The RPP allowed the registration of new parties by
politicians who belonged to other parties.

The IEBC and RPP failed to enforce legal deadlines for
the integrity of the process. Parliament itself mutilated
the Constitution by amending enabling laws to favour late
party hopping, and pushed key deadlines to the edge of
non-compliance.

The IEBC delayed voter registration and failed to check
the accuracy of voter rolls. The IEBC and RPP allowed
parties to bully them into incompetence, laxity, and
several illegalities.

Fourth, the IEBC and the RPP shouldn't have allowed the
parties to carry out the primaries by themselves. It's
true that under ordinary circumstances parties do so. But
the IEBC and the RPP know â€“ndash; as do all Kenyans â€“ndash; that our
political parties are a fiction. They are nothing but
husks for their bosses.

Jubilee belongs to Deputy Prime Minister Uhuru Kenyatta
while Cord is the property of PM Raila Odinga. This is
the bitter truth.

Parties have no firm structures, or internal democratic
norms. That's why the IEBC should have stepped in to
oversee the primaries with firm credible deadlines. The
IEBC's failure to intervene has given us cooked and
illegitimate results. Primaries weren't even conducted in
several cases.

Fifth, Kenya doesn't have sufficient security apparatuses
to effectively deal with violent breakouts all over the
country during and after the elections. The competence
and effectiveness of our police service has been brought
to question. Look at their inability to deal with
localised terror in Tana River.

Multiply that by a factor of 50 during the election and
let us, in all honesty, say if they will be able to
restore order. Unless the primary elections are repeated
to produce credible results, there will be both "intra"
and "inter" party violence.

You will have URP folks fighting TNA candidates, and ODM
candidates fighting Wiper ones. And then you will have
Cord candidates going after Jubilee ones and vice-versa.
The whole thing is likely to degenerate into mayhem.

Finally, the electorate is highly tribalised, as are the
parties. ODM didn't really stage primaries in Central
Kenya, nor did Jubilee in Nyanza. This doesn't bode well
for the March elections. I know there are those who will
call me a "prophet of doom". That's their right.

But I prophesy nothing, let alone doom. I am rather
giving a warning about what is likely to happen. It's
cockamamie to lay aside realistic analysis for wishful
thinking. It's foolish. It's like rejecting warnings not
to drink hemlock â€“ndash; then gulping it â€“ndash; and hope to survive.

Kenya: Stalled police reform is a risk to elections

Violence in the aftermath of the 2007 Kenyan elections
which claimed 1,300 lives shows just how vital it is
Kenyan police are properly prepared ahead of polls this
March, Amnesty International said in a new report, Police
Reform in Kenya: A Drop in the Ocean.

The report details how delays in implementing new laws on
policing mean that many of the same police structures in
place during 2007-8 post-election violence will be
responsible for security for the 4 March vote.

"With five weeks to go to the elections the Kenyan
authorities must show the political will and take urgent
measures to prevent human rights abuses during the
election period. said Sarah Jackson, Amnesty
International's Deputy Africa Programme Director.

One government official told Amnesty International that
new laws and equipment introduced since 2008 are just a
"drop in the ocean.

The report documents continued human rights violations by
the police, despite ongoing reform, including arbitrary
arrests and ill-treatment.

The police have also failed to protect people from human
rights abuses in the Tana Delta, where 200 people have
been killed and 112,000 displaced since August 2012.

And there has been little movement towards bringing the
police to account either collectively or individually for
these human rights violations.

The report urges the authorities to take immediate steps
to improve capacity so that security officials are able
to prevent abuses, and ensure that they themselves
refrain from human rights violations during the
elections.

Amnesty International urges the National Police Service
Commission to publish a code of conduct for the police
during the election period and to ensure all law
enforcement officials receive training ahead of polls
opening, including on limitations on the use of force,
and non-violent tactics including negotiation and
mediation.

"The authorities should ensure there is a clear strategy
for how the elections will be policed, said Jackson, "It
should include commitments to the public on how the
police will prevent human rights abuses and keep them
safe.

After the elections, the newly inaugurated government
should act swiftly to demonstrate its commitment to
police reform, and address shortcomings which underpin
impunity for police abuses.

This must include ensuring that all police bodies,
including those responsible for standards, have the
necessary funds to carry out their vital work.

"By taking immediate steps ahead of the March 2013
elections, and by prioritising the implementation of
reform once voting is over, the Government of Kenya can
finally end the impunity which the police have enjoyed
for far too long, said Jackson. "It must not miss this
opportunity.

Kenya's 2013 Elections

Executive Summary and Recommendations

Kenya's elections this year should turn the page on the
bloodshed of five years ago, but the risk of political
violence is still unacceptably high. A new constitution,
fresh election commission and reformed judiciary should
help. But the vote, now set for 4 March 2013, will still
be a high-stakes competition for power, both nationally
and in 47 new counties. Forthcoming trials before the
International Criminal Court (ICC) of four Kenyans for
their alleged role in the 2007-2008 post-election
violence look set to shape the campaign. The potential
for local violence is especially high. Politicians must
stop ignoring rules, exploiting grievances and stoking
divisions through ethnic campaigning. The country's
institutions face fierce pressure but must take bold
action to curb them. Business and religious leaders and
civil society should demand a free and fair vote. So too
should regional and wider international partners, who
must also make clear that those who jeopardise the
stability of the country and region by using or inciting
violence will be held to account.

Many reforms were initiated to address the flawed 2007
polls and subsequent violence. A new constitution, passed
in a peaceful referendum in August 2010, aims to fortify
democracy and temper zero-sum competition for the
presidency by checking executive power. New voting rules
require the president to win more than half the votes and
enjoy wider geographic support. Power is being devolved
to 47 counties, each of which will elect a governor,
senator and local assembly. Despite recent mishaps, the
new Independent Electoral and Boundaries Commission
(IEBC) still enjoys public trust. Judicial reform,
including the appointment of a respected new chief
justice, also augurs well for a more robust response to
electoral fraud and disputes.

The new institutions, however, have their work cut out.
The ICC proceedings are influencing political alliances
and the campaign. The four individuals facing trial deny
the charges and maintain their innocence. While the cases
aim to erode impunity long enjoyed by political elites
and may deter bloodshed, they raise the stakes
enormously. The two most powerful of the accused, Uhuru
Kenyatta and William Ruto, look set to contest the
elections on a single ticket (Kenyatta for president,
Ruto for deputy president). Both have politicised the ICC
cases, deepening ethnic polarisation, and have accused
Prime Minister Raila Odinga, their strongest opponent, of
conspiring with foreigners against them.

The Kenyatta-Ruto alliance would be a strong ticket.
Aware that Kenyans want an end to impunity, both have
pledged to comply with the ICC, even if they win. Yet,
regardless of the outcome of their cases, a president
facing lengthy trial before the ICC could potentially
have extremely damaging implications for reform and
foreign relations, which Kenyatta's backers should ponder
carefully. For the moment, their eligibility to run for
office remains in doubt; a case challenging their
compliance with new constitutional requirements for
public officials' integrity is with a high court and may
find its way by appeal to the Supreme Court. Were the
courts to find Kenyatta and Ruto ineligible after the
closing date for submitting nomination papers on 30
January, their supporters would be unable to choose
alternative candidates, which might lead to strong
protests and even spark conflict. Dealing as it does with
a highly charged political issue, whichever way it goes,
the final decision is likely to be contentious. If
possible, the date of any decision should be announced in
advance so the security agencies and others can prepare
accordingly.

Other signs are also troubling. Political parties and
politicians flout new rules unchecked. The IEBC's bungled
procurement of voter registration kits reduced the
confidence it previously enjoyed and suggests it may
struggle to resist enormous pressure as the vote
approaches. The late start to registration has cut all
fat from the electoral timeline, and any flaws will
heighten tension. The IEBC must work transparently with
parties and other stakeholders to clarify and regularly
review the timeline, so as to avoid any further â€“ndash; and
highly-charged â€“ndash; delays.

Voter education will be crucial. It is the first general
election under the 2010 constitution, with new rules that
are considerably more complex than previous polls (each
voter will cast six ballots). Limiting confusion and
misunderstandings could help reduce disputes and
election-related conflict. It is also vital that the IEBC
provide sufficient access and information to citizen
observers and other civil society groups. They must be
able to plan their deployment properly and enjoy full
access to every part of the election process, especially
the tallying of results. Such groups can also be useful
allies in bolstering commissioners' ability to resist
political interference.

Insecurity too poses a huge challenge. Despite the
reforms, many structural conflict drivers â€“ndash; continuing
reliance on ethnicity, competition for land and
resources, resettlement of internally displaced people
(IDPs), and poverty and youth unemployment â€“ndash; underlying
the 2007-2008 violence remain unresolved and may be
cynically used by politicians to whip up support. Many of
those who fled the turmoil remain displaced. Land
disputes feed local tension. Youth unemployment is still
very high and, together with poverty and inequality,
means a steady flow of recruits for criminal groups and
militias that can be mobilised to intimidate opponents
and their supporters or protest results, as they have in
the past. Attacks blamed on the extremist Al-Shabaab
movement and clashes over land can cloak political
violence. Meanwhile, police reform has lagged and the
security forces look ill-prepared to secure the polls. An
experienced inspector general of police, David Kimaiyo,
has been appointed, but the delay in his selection means
little time remains for significant security reform.
Multi-agency security planning, which has also lagged,
must be completed and implemented.

Ethnic campaigning and horse-trading as alliances formed
â€“ndash; by Kenyatta and Ruto but also other leading politicians
â€“ndash; have deepened divides. How the supporters of either of
the two main tickets, those of Deputy Prime Minister
Kenyatta and former cabinet minister Ruto running and of
Prime Minister Odinga and Vice President Kalonzo Musyoka
respectively, would respond to losing a close vote it
perceives as flawed, or even to early signs it is falling
behind, is unclear. International partners, including
regional neighbours whose economies rely on a peaceful
transition, should monitor any signs of interference or
violence and weigh in quickly to deter it. Devolution,
for all its benefits, introduces new conflict dynamics,
as competition between groups for power and resources
controlled at county level becomes fiercer.

All these challenges are surmountable, especially given
the remarkable determination of most to avoid a repeat of
2007-2008. But they require concerted action by Kenya's
institutions and their allies, and â€“ndash; most important â€“ndash;
clear signals to leaders who are seen to be prioritising
the pursuit of power. The people deserve better. To put
the horror of five years ago behind them, they deserve
the chance to vote without fear and elect leaders
committed to reform and ready to serve society as a whole
rather than the narrow interests of its elites.

2. Continue to urge the national and all provincial
security committees to complete security planning,
identify vulnerable counties and deploy accordingly.

3. Support the IEBC proposed Joint Risk Assessment and
Response Centre for sharing information and coordinating
operations among national and local security
organisations and committees, as well as civil society
groups.

To Kenya's political parties and coalitions:

4. Commit publicly, and together, to respect rules,
campaign peacefully, avoid hate speech and divisive
mobilisation and pursue any petitions or other election
grievances only through legal channels.

5. Recruit party agents early and work with
international partners to ensure they understand their
role and follow the rules in the polling centres.

To Uhuru Kenyatta and William Ruto:

6. Provide the public with a clear, detailed account of
how you would propose to govern while also conducting
your defences before the ICC, taking into account the
time required and the demands of appearing in person in
court on a different continent.

To the Independent Electoral and Boundaries Commission
(IEBC) and acting registrar of political parties:

7. Improve outreach and communication with stakeholders,
including political parties, candidates, the media and,
in particular, civil society, with which a strong
alliance is especially important to resist political
pressure; and provide citizen observer groups the
information they need in a timely manner.

8. Press for all candidates at national and county level
and political parties to adhere stringently to the Code
of Conduct enacted as part of the 2011 Elections Act.

9. Keep tight focus on operational planning, especially
on vote counting and tallying of results, including for
the likely presidential run-off; and make results for
both rounds publicly available and disaggregated by
polling stream to allow for their verification by citizen
observers and party agents.

10. Take action, in coordination with the National
Cohesion and Integration Commission, against political
parties and candidates that violate rules, campaign
divisively or use hate speech.

To Kenya's business and religious leaders and other
influential citizens, including the media:

11. Denounce publicly hate speech and ethnic chauvinism
and use actively their resources for civic and voter
education.

12. Consider carefully the implications for Kenya of a
president facing trial before the ICC.

To Kenyan civil society groups:

13. Form ad hoc umbrella committees to capitalise on
each organisation's expertise and avoid duplication, in
order to find a collective voice and increase their
influence; continue preparations to monitor the campaign
and vote, use parallel vote tabulation responsibly and
work with and support the IEBC if it is performing well.

To regional leaders, especially the governments of the
East African Community:

14. Send unambiguous public and private messages against
political interference with the elections and especially
against the use of or incitement to violence.

15. Support the efforts of the joint East African
Community election observation team, as well as of other
observation missions.

To Kenya's other regional and wider international
partners, especially the African Union, U.S., European
Union and its member states, UN and International
Financial Institutions:

16. Send unambiguous public and private messages that
politicians must not meddle with the IEBC or the
judiciary and that political violence will be sanctioned,
including, if appropriate, by adopting travel bans or
asset freezes.

17. Ensure all regional and wider international
observation missions deploy early, to as many counties as
possible, and cooperate to align their statements and
avoid duplication.

Nairobi/Brussels, 17 January 2013

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